The author M.A. against Denmark in a violation of article 8 and 14 of the Convention.
The author is a Syrian national, who fled Syria in 2015 and entered Denmark in 2015, requested asylum.
In his request for asylum, he submitted that being a doctor, he was at risk of being subjected to ill treatment by both the authorities and the rebel movement. He had twice been stopped at a checkpoint. He also stated that his wife, G.M., worked as a media consultant. She and their two adult children had remained in Syria. The Immigration Service granted him “temporary protection status” for one year, under section 7(3) of the Aliens Act, concerning individuals who face capital punishment, torture or inhuman or degrading treatment or punishment owing to severe instability and indiscriminate violence against civilians in their home country. His residence permit was subsequently extended for one year at a time.
The Immigration Service did not find that the applicant fulfilled the requirements for being granted protection under section 7(1) of the Aliens Act (individuals falling under the protection of the 1951 UN Refugee Convention, “Convention status”) or under section 7(2) (individuals, who do not qualify as refugees under the UN Refugee Convention, but who are facing capital punishment, torture or inhuman or degrading treatment or punishment, if returned to their home country, “protection status”). At the relevant time, residence permits under subsections 1 and 2 were normally granted for five years.
The applicant appealed against the decision to the Refugee Appeals Board, arguing that he should be granted protection under section 7(1) or (2) of the Aliens Act. The Refugee Appeals Board upheld the Immigration Service’s decision to grant the applicant temporary protection under section 7(3).
In 2015 M.A. requested family reunification with his wife and two adult children, who were born in 1992 and 1993 respectively. This request was rejected by the Immigration Service because he had not been in possession of a residence permit under section 7(3) of the Aliens Act for the last three years as required under section 9(1)(i)(d) of the Act, and because there were no exceptional reasons, including concern for the unity of the family, to justify family reunification under section 9c(1) of the Act. The Immigration Service emphasized that it had not taken a stand on whether other conditions had been fulfilled, including whether the marriage could be legally acknowledged in Denmark.
The applicant appealed against the refusal to grant him family reunification with his wife. The Immigration Appeals Board upheld the decision. M.A. instituted proceedings before the courts complaining that the refusal to grant him family reunification with his wife was in breach of Article 8 read alone and in conjunction with Article 14 of the Convention. He submitted that he had been discriminated against as compared to persons who had been granted protection under section 7(1) and (2) of the Aliens Act. By Law no. 102 of 3 February 2016 (hereinafter “the 2016 Act”), the Danish Parliament had amended section 9(1)(i)(d) of the Aliens Act, so that the right to family reunification for a person who, like him, had been granted “temporary protection status” under section 7(3) could be exercised only after three years (in the absence of exceptional reasons), while individuals enjoying “Convention status” or “protection status” could be granted family reunification without being subjected to a waiting period.
In 2017 the Supreme Court found against M.A.
In 2018, having resided in Denmark for two years, ten months and two weeks, M.A. submitted a new request for family reunification. His request was refused because M.A. had failed to submit documentation regarding the authenticity of the marriage. Having submitted the necessary documentation, in 2019 the applicant’s wife was granted a residence permit, initially valid for one year.
The author M.A. complained that the decision of 16 September 2016 by the Danish immigration authorities to refuse temporarily to grant him family reunification with his wife on the grounds that he had not possessed a residence permit under section 7(3) of the Aliens Act for the last three years, was in breach of Article 8 of the Convention, which reads as follows:
ECHR is not satisfied, notwithstanding their margin of appreciation, that the authorities of the respondent State, when subjecting the applicant to a three-year waiting period before he could apply for family reunification with his wife, struck a fair balance between, on the one hand, the applicant’s interest in being reunited with his wife in Denmark and, on the other, the interest of the community as a whole to control immigration with a view to protecting the economic well-being of the country, to ensuring the effective integration of those granted protection and to preserving social cohesion.
It follows that there has been a violation of Article 8 of the Convention and there is no need to examine separately the applicant’s complaint under Article 14 read in conjunction with Article 8 of the Convention.
The Court considers it undeniable that the applicant sustained non-pecuniary damage on account of the violation of Article 8 of the Convention. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards EUR 10,000 under this head, plus any tax that may be chargeable.
15. November 2023